Will Non-Lawyers Soon Be Able to Practice Some Law in California?

When you last visited your doctor, did you spend the whole time with her? Or did your visit include a discussion of your blood pressure with a nurse practitioner, or a shot given by a physician’s assistant instead? Most likely your time with the doctor was more limited – and this decreased the cost of that visit to you (or to your insurance company). In fact, some clinics handle most of their work with nurse practitioners and physician’s assistants, with a doctor making brief appearances for more complicated issues.

This concept of moving the less complex medical procedures down to less exalted (and less expensive) medical professionals, however, has not meaningfully spread to the legal profession. Yes, we have paralegals – but their roles are severely limited. Probably the closest we have to nurse practitioners are the frightening “notarios” who often prey on low income people, taking their money but unable to actually help them in their legal matters.

The Justice Gap

In the medical world, if you don’t have insurance and can’t afford a doctor, you can show up at a public emergency room or health clinic, where (though you may wait long hours) you will generally eventually be treated. This is less than ideal – it does not offer preventive care and early diagnosis, and it clogs the emergency rooms – but it is, at least, a back stop. In the legal world, though, if you can’t afford an attorney, you have no back stop. If you qualify, you could apply for help to a legal aid or pro bono organization – but they only have the capacity to help a small percentage of those in need. And for those living slightly above the income ceiling for legal aid, there are very few options.

Increasing income disparity, escalating legal costs, and budget cuts at courts and legal aid organizations have exacerbated this problem. As a result, increasing numbers of people are unable to obtain the restraining or custody orders, or other types of relief that they need – or they are venturing to court on their own. Needless to say, unassisted pro per litigants tend to get much less in court than they would have if represented, and they also cause long delays for the court and other litigants. This situation brings to mind the New Yorker cartoon featuring a lawyer advising a new client. “You have an excellent case, Mr. Jones. Now – how much justice can you afford?”

Washington State’s Experiment

Washington State has started a bold new experiment to address this problem, and California may be poised to follow suit. The concept is to offer licenses to non-lawyers to provide certain limited legal services – fill out forms, explain court processes, advise clients on strategy – in particular types of cases. The position is not unlike a paralegal, but a Limited Licence Legal Technician (LLLT) can provide these services without any attorney supervision. The chart to the right chronicles the process to become a LLLT. Once the applicant has completed these hurdles, he or she can join a law firm or legal services provider or hang out their own shingle as an LLLT.

LLLT’s will be regulated and subject to discipline by the Washington State Bar, much like lawyers. Washington’s law does not currently permit LLLT’s to negotiate with the opposing party or to appear in court, but their State Bar is considering amending the rule to add those activities to the list of permitted actions.

We don’t yet know what this program will look like in practice. The first class of LLLTs has just taken the first exam, and results won’t be out until late June. But Washington does not anticipate that LLLTs will compete significantly with lawyers. The numbers of people who cannot currently afford a lawyer are huge, and some of those people could afford a lower-priced LLLT. Indeed, LLLT’s (who must refer more complex matters to an attorney) may make it possible for this population to retain an attorney for a limited purpose.

Many are worried – will the work be done competently? What if the litigant’s legal problem changes (as family law problems, in particular, are wont to do) – will the LLLT know to step out and hand it off? Time will have to tell, but the Washington Supreme Court is counting on the marketplace and the State Bar’s discipline system to contain those problems. California is just starting to consider the possibility of instituting a program modeled on Washington’s. The Civil Justice Strategies Task Force of the California State Bar has recommended LLLTs to the Bar’s Board, but they are unlikely to consider it in the next few months, as the search for a new Executive Director and a new General Counsel ramps up. There will be time for public comment. But we should begin to think this through, as it could have a significant impact on the legal profession, and on the justice gap.

Tiela Chalmers is the CEO of the Alameda County Bar Association and on the Board of Director for the Volunteer Legal Services Corporation. Tiela has been a consultant in the fields of legal services and pro bono, handling projects including coordinating the Shriver Housing Project in Los Angeles, the largest of the “civil Gideon” pilot projects in California, and working with the ABA and a national working group on updating the Pro Bono Standards. Previously the Executive Director of Volunteer Legal Services Program in San Francisco, Tiela worked at VLSP for many years with Tanya Neiman until her death. Prior to VLSP, Tiela was an attorney at Farella, Braun + Martel in San Francisco.